Weapons Review Obligation under Customary International Law

Under Article 36 of the 1977 Additional Protocol I to the Geneva Conventions, States are required to review new weapons for their compliance with international law. While recent discussions on the regulation of lethal autonomous weapons systems under the auspices of the UN Certain Conventional Weapons Convention increasingly emphasize the importance of national weapons review mechanisms, Article 36 is known to be implemented only by a handful of States. Some legal scholars have nonetheless argued that the Article 36 obligation has attained customary international law status. Remarkably, substantive analysis of State practice and opinio juris required to evidence that certain conduct of States has advanced to a level of customary international law is absent in these claims. This article examines whether the weapons review obligation as formulated under Article 36 is mandated by customary international law. An affirmative answer to this question would require evidence of “extensive and virtually uniform” State practice showing that new weapons are legally reviewed at the earliest stage in the acquisition process as a matter of law. The article concludes that no such evidence exists. It then considers “alternate” weapons reviews by asking whether a narrower obligation to review weapons before fielding forms part of customary international law. It finds that the existence of such a rule is also unsupported by State practice and opinio juris

Open banking and Australia’s data-sharing regime: six lessons for Europe

As the phenomenon of open banking spreads, countries would be better off by working together and making data-sharing across jurisdictions a smoother process. Ross Buckley, Natalia Jevglevskaja, and Scott Farrell write that the sooner national policymakers find themselves on the same page, the more control consumers will have over their data at home, and abroad, and the more data-sharing will be able to drive needed competition in economies. They highlight six lessons from Australia’s experience that could help policymakers around the world establish robust data-sharing frameworks

States’ weapons review obligations under Article 36 of the 1977 Additional Protocol 1 to the Geneva Conventions and beyond

© 2018 Dr. Natalia JevglevskajaAs long as the prospect of wars exists, the development and sophistication of military technology will continue. For many centuries now, States have repeatedly addressed the question of weapons legality on a multilateral level. As a result, under international treaty and customary law, some weapons are prohibited and others subjected to restrictions on their use. Although efforts taken to regulate weapons on the international level so far are commendable, they are not sufficient. For the law to remain relevant despite the ever-increasing pace of scientific advancement, States must also review new weapons on their compliance with international law domestically, as required by Article 36 of the 1977 Additional Protocol I to the Geneva Conventions (‘AP I’). The provision, however, has been largely marked by poor implementation and, thus far, no comprehensive and systemic study of the content of the weapons review obligation has been offered in the legal scholarship. At the same time, in view of potential development of lethal autonomous weapons systems — that is, advanced weapons relying on artificial intelligence to select and engage targets without human intervention — attention is increasingly turned to the importance of national weapons review mechanisms. My thesis seeks to offer a detailed analysis of the scope of Article 36 of AP I. It also examines the origins of the provision and whether a weapons review obligation exists under customary international law. In addition, it considers to what extent an obligation under Article 36 may overlap with the duty of States to provide for legal advisers to military commanders as per Article 82 of AP I. In the thesis, I argue that Article 36 is sufficiently broad to cover a wide range of emerging military technology; it also offers States the needed flexibility to adopt a process that best suits their organisational demands. Yet, only a good faith implementation provides an assurance that no State uses weapon systems that are inherently unlawful or cannot be employed lawfully in at least certain circumstances. Whilst the major emphasis will be on doctrine, the empirical component forms an essential element of the research project. I undertook a series of interviews with government officials involved in the examinations of proposed new weapons in Australia, Austria, Belgium, Canada, Germany, the Netherlands, New Zealand, Norway, Sweden, Switzerland and the United States — States known to have established a national weapons review mechanism. The research also draws from the discussions with the former delegates to, experts and observers at the 1974–77 Diplomatic Conference where Article 36 was negotiated, and legal officers of the International Committee of the Red Cross whose work includes raising awareness of the importance of conducting Article 36 reviews